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This is a Bill, not an Act. For current law, see the Acts databases.
Clause Page
Optometrists Registration Act 1996
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
3. Definitions 2
4. Application of Act 5
PART 2--REGISTRATION 6
Division 1--Procedure for Obtaining Registration 6
5. Application for registration 6
6. Qualifications for general registration 6
7. General registration 7
8. Specific registration 9
9. Entitlement of applicant to make submissions 10
10. Notification of outcome of application 10
11. Endorsement of registration 11
12. Duration and renewal of registration 12
13. Application for renewal of and refusal to renew registration 12
14. Restoration of name to the register 13
15. Effect of suspension of registration 13
16. Registration obtained by fraud 13
Division 2--The Register 14
17. The Register 14
18. Certificates 15
19. Use of certificate as evidence 15
20. Requirement to notify the Board of change of address 16
21. Notification of death by Registrar of Births, Deaths, Marriages
and Names 16
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PART 3--INVESTIGATIONS INTO REGISTERED
OPTOMETRISTS 17
Division 1--Preliminary investigations into professional conduct 17
22. Complaints about the professional conduct of optometrists 17
23. When complaints about professional conduct are to be
investigated by Health Services Commissioner 17
24. When complaints about professional conduct are to be
investigated by the Board 18
25. Outcome of preliminary investigation 18
26. Board may institute a hearing into professional conduct 19
27. Suspension of registration upon commencement of investigation 19
Division 2--Preliminary investigation into the health of registered
optometrists 20
28. Commencement of preliminary investigation 20
29. Notification to optometrist 20
30. Medical examination 21
31. Report of examination 21
32. Outcome of preliminary investigation 22
33. Referral to formal hearing 22
34. Request for conditions, limitations or restrictions 23
35. Revocation of suspension of registration or condition, limitation
or restriction imposed on registration 23
36. Immediate suspension of registration 23
Division 3--Formal and Informal Hearings 24
37. Establishment and notification of an informal hearing 24
38. Constitution of a panel for an informal hearing 25
39. Notice of an informal hearing 25
40. Conduct of an informal hearing 26
41. Findings and determinations of an informal hearing 26
42. Change of informal hearing to formal hearing during course of
hearing 27
43. Request for formal hearing upon completion of informal hearing 27
44. Establishment and notification of formal hearing 27
45. Constitution of a hearing panel for a formal hearing 28
46. Notice of a formal hearing 29
47. Conduct of a formal hearing 29
48. Findings and determinations of a formal hearing into conduct 30
49. Findings and determinations of a formal hearing into ability to
practise 31
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Division 4--General Provisions relating to Investigations 32
50. Procedure at formal and informal hearings 32
51. Powers of panel conducting a formal hearing 32
52. Determinations 33
53. Removal of suspension, condition, limitation or restriction 33
54. Reasons for determinations of panel or Board 33
55. Notifications 34
56. Offence to disclose information identifying complainant 35
57. Terms and conditions of appointment of panel members 36
PART 4--REVIEW BY ADMINISTRATIVE APPEALS
TRIBUNAL 37
58. Review by AAT 37
59. Notification 37
PART 5--OFFENCES 39
60. Unregistered persons 39
61. Claims by persons as to registration 39
62. Fraud, forgery etc. 41
63. Advertising 41
64. Exemptions 42
PART 6--ADMINISTRATION 43
65. Establishment of Board 43
66. Powers, functions and consultation requirements 43
67. Membership of the Board 44
68. Terms of office 44
69. Resignation and removal 45
70. President and Deputy President 45
71. Acting member 46
72. Payment of members 46
73. Procedure of Board 47
74. Member's interests 47
75. Resolutions without meetings 48
76. Approved methods of communication for Board 48
77. Effect of vacancy or defect 49
78. Immunity 49
79. Staff 50
80. Delegation 50
PART 7--REPORTING AND FINANCIAL PROVISIONS 51
81. Optometrists Registration Board Fund 51
82. Investment powers 51
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83. Repayment of advances 51
PART 8--ENFORCEMENT AND SUPPLEMENTARY POWERS 53
84. Proceedings for offences 53
85. Identification 53
86. Powers of entry with warrant 53
87. Announcement before entry 55
88. Copy of warrant to be given to occupier 55
89. Copies or receipts to be given 55
90. Powers of Board in relation to fees 56
PART 9--REGULATIONS 57
91. Supreme Court--Limitation of jurisdiction 57
92. Regulations 57
PART 10--SAVINGS, TRANSITIONAL AND AMENDMENTS 59
Division 1--Savings and Transitional 59
93. Definitions 59
94. Repeal 59
95. Board succeeds old Board 59
96. Proceedings before the old Board 60
97. Application of this Act to conduct occurring before
commencement of this Act 61
98. Existing registrations 61
99. Preparation of annual report 62
Division 2--Consequential Amendments 63
100. Amendment of Drugs, Poisons and Controlled Substances Act
1981 63
101. Amendment of Health Services (Conciliation and Review) Act
1987 64
NOTES 65
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A BILL
to make further provision for the registration of optometrists, the
investigation into the professional conduct or fitness to practise of
registered optometrists, to regulate the advertising of optometry
services, to establish the Optometrists Registration Board of Victoria
and the Optometrists Registration Board Fund of Victoria, to repeal
the Optometrists Registration Act 1958 and to make consequential
amendments to other Acts and for other purposes.
Optometrists Registration Act 1996
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The main purposes of this Act are--
(a) to protect the public by providing for the
5
registration of optometrists and
investigations into the professional conduct
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s. 2
Act No.
and fitness to practise of registered
optometrists; and
(b) to regulate the advertising of optometry
services; and
(c) to establish the Optometrists Registration
5
Board of Victoria and the Optometrists
Registration Board Fund of Victoria; and
(d) to repeal the Optometrists Registration Act
1958; and
(e) to make consequential amendments to other
10
Acts; and
(f) to provide for other related matters.
2. Commencement
(1) Section 1 and this section come into operation on
the day on which this Act receives the Royal
15
Assent.
(2) Subject to sub-sections (3) and (4), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.
(3) If a provision referred to in sub-section (2), except
20
sections 11 and 100, does not come into operation
before 1 July 1997, it comes into operation on that
day.
(4) If sections 11 and 100 do not come into operation
before 1 July 1998, those sections come into
25
operation on that day.
3. Definitions
In this Act--
"Administrative Appeals Tribunal" means the
Administrative Appeals Tribunal established
30
under the Administrative Appeals
Tribunal Act 1984;
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s. 3 Act No.
"alcoholic" has the same meaning as in the
Alcoholics and Drug-dependent Persons
Act 1968;
"Board" means the Optometrists Registration
Board of Victoria established under Part 6;
5
"drug-dependent person" has the same meaning
as in the Alcoholics and Drug-dependent
Persons Act 1968;
"Fund" means the Optometrists Registration
Board Fund established under Part 7;
10
"Health Services Commissioner" means the
Health Services Commissioner within the
meaning of the Health Services
(Conciliation and Review) Act 1987;
"lawyer" means a person admitted to practise as
15
a barrister and solicitor of the Supreme
Court;
"register" means the register of optometrists kept
under Part 2;
"registered medical practitioner" means a
20
medical practitioner registered under the
Medical Practice Act 1994;
"optometry" means--
(a) the employment of methods for the
measurement of the powers of vision;
25
and
(b) the prescribing of optical appliances to
correct, remedy or relieve defects of
vision; and
(c) the adaptation of lenses and prisms for
30
the aid of the powers of vision--
and includes the prescribing and fitting of
contact lenses;
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s. 3
Act No.
"registered optometrist" means a person
registered under Part 2, whether or not the
registration of that person is general or
specific;
"unprofessional conduct" means all or any of
5
the following--
(a) professional conduct which is of a
lesser standard than that which the
public might reasonably expect of a
registered optometrist;
10
(b) professional conduct which is of a
lesser standard than that which might
reasonably be expected of an
optometrist by his or her peers;
(c) professional misconduct;
15
(d) infamous conduct in a professional
respect;
(e) providing a person with health services
of a kind that is excessive, unnecessary
or not reasonably required for that
20
person's well-being;
(f) influencing or attempting to influence
the conduct of an optometry practice in
such a way that patient care may be
compromised;
25
(g) the failure to act as an optometrist when
required under an Act or regulations to
do so;
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s. 4 Act No.
(h) a finding of guilt of--
(i) an indictable offence in Victoria,
or an equivalent offence in
another jurisdiction;
(ii) an offence where the optometrist's
5
ability to continue to practise is
likely to be affected because of
the finding of guilt or where it is
not in the public interest to allow
the optometrist to continue to
10
practise because of the finding of
guilt;
(iii) an offence under this Act or the
regulations;
(iv) an offence as an optometrist under
15
any other Act or regulations.
4. Application of Act
(1) Nothing in this Act applies to the practise of the
profession of a registered medical practitioner.
(2) Nothing in this Act applies to any person--
20
(a) by reason only of that person carrying out
any lens grinding or spectacle making; or
(b) if that person is a bona fide dispensing
spectacle-maker, by reason only of that
person making and supplying spectacles on
25
the prescription of a registered medical
practitioner, a registered optometrist or an
orthoptist referred to in, and acting in
accordance with, section 60(2).
30 _______________
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s. 5
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PART 2--REGISTRATION
Division 1--Procedure for Obtaining Registration
5. Application for registration
(1) A natural person may apply to the Board for
registration as an optometrist.
5
(2) An application must be--
(a) in writing in the prescribed form and
accompanied by evidence of the
qualifications which the applicant claims
entitle him or her to the type of registration
10
applied for; and
(b) accompanied by the fee determined by the
Board.
(3) The Board--
(a) may require the applicant to provide further
15
information or material in respect of the
application; and
(b) may require that the information in the
application be verified by a declaration under
section 107 of the Evidence Act 1958; and
20
(c) may require proof of identity of the person
making the application.
6. Qualifications for general registration
A person is qualified for general registration as an
optometrist if that person--
25
(a) has successfully completed a course of study
at an institution accredited by the Optometry
Council Incorporated and approved by the
Board or any other course of study approved
by the Board; or
30
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s. 7 Act No.
(b) in the opinion of the Board, has a
qualification that is substantially equivalent
or is based on similar competencies to an
accredited course; or
(c) has passed a qualifying examination
5
conducted by or on behalf of the Optometry
Council Incorporated and approved by the
Board; or
(d) has a qualification that is recognised in
another State or Territory of the
10
Commonwealth for the purposes of
undertaking work of a similar nature to that
which a person holding a qualification to
which paragraph (a), (b) or (c) applies is
qualified to undertake.
15
7. General registration
(1) The Board must grant general registration as an
optometrist to an applicant if--
(a) the applicant is qualified for registration
under section 6; and
20
(b) there are no grounds under sub-section (2)
under which the Board may refuse to grant
registration to the applicant; and
(c) the circumstances are such that section 8
does not apply; and
25
(d) the applicant has paid the fee determined by
the Board under section 5(2)(b).
(2) The Board may refuse to grant registration to an
applicant on any one or more of the following
grounds--
30
(a) that the character of the applicant is such that
it would not be in the public interest to allow
the applicant to practise as a registered
optometrist;
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Act No.
(b) that the applicant is unfit to practise as a
registered optometrist because he or she is an
alcoholic or drug-dependent person;
(c) that the applicant has been found guilty of an
indictable offence in Victoria or an
5
equivalent offence in another jurisdiction;
(d) that the applicant has been found guilty of an
offence where the ability of the applicant to
practise is likely to be affected because of
the finding of guilt or where it is not in the
10
public interest to allow the applicant to
practise because of the finding of guilt;
(e) that the applicant has previously been
registered under this Act or the
Optometrists Registration Act 1958 and
15
during the course of that registration has had
proceedings under Part 3 or similar
proceedings under the Optometrists
Registration Act 1958 brought against him
or her and those proceedings have never
20
been finalised;
(f) that, in the opinion of the Board, the
applicant is unfit to be registered because he
or she has a physical or mental impairment
which significantly impairs his or her ability
25
to practise as a registered optometrist;
(g) that the applicant's competency in speaking
or communicating in English is not sufficient
for that person to practise as a registered
optometrist;
30
(h) that the applicant has previously held a right
to practise as an optometrist in another
country, being the equivalent of registration
as an optometrist under this Act, and that
right has been cancelled or suspended and
35
not restored because of conduct which, if
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s. 8 Act No.
committed within Victoria, would entitle the
Board to suspend or cancel registration.
(3) A grant of registration under this section is subject
to any conditions, limitations or restrictions that
the Board thinks fit.
5
(4) The Board may, upon application by the
registered optometrist, amend, vary or revoke any
condition, limitation or restriction imposed under
sub-section (3).
8. Specific registration
10
(1) The Board may grant or refuse to grant specific
registration as an optometrist to an applicant if the
applicant holds qualifications in optometry which
do not qualify that applicant for general
registration--
15
(a) to enable that applicant to undertake
supervised study or training or a course
approved by the Board at a tertiary
institution; or
(b) to enable that applicant to fill an optometry
20
teaching or research position at a tertiary
institution approved by the Board; or
(c) to enable an applicant from another country
to practise in Victoria if that applicant has
exchanged practice with a registered
25
optometrist for a limited period with the
prior permission of the Board.
(2) A grant of specific registration under this section
is subject to any conditions, limitations or
restrictions imposed by the Board including the
30
period of registration which must not exceed 12
months.
(3) The Board may of its own motion, or upon
application by the optometrist granted specific
registration, amend, vary or revoke any condition,
35
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limitation or restriction imposed under sub-section
(2).
9. Entitlement of applicant to make submissions
If the Board is proposing to refuse an application
for registration or to impose conditions,
5
limitations or restrictions on the registration of an
applicant, the Board must not do so until--
(a) it has given the applicant notice of this
proposal; and
(b) it has given the applicant an opportunity to
10
make submissions to the Board about the
proposal.
10. Notification of outcome of application
(1) Upon determining an application for registration
under this Part, the Board must notify the
15
applicant as to whether or not registration has
been granted to the applicant.
(2) A notice under sub-section (1) must include the
following information--
(a) if the registration has been granted--
20
(i) the type of registration granted; and
(ii) whether or not any conditions,
limitations or restrictions have been
imposed on the registration and, if so,
the reasons for imposing the conditions,
25
limitations or restrictions; and
(iii) whether or not the registration has been
endorsed under section 11; or
(b) if the registration has not been granted--
(i) the reasons why it has not been granted;
30
and
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Optometrists Registration Act 1996
s. 11 Act No.
(ii) a statement that the applicant has a
right to obtain a review of the decision
not to grant registration.
11. Endorsement of registration
(1) If the Board is satisfied that an optometrist has
5
satisfactorily completed a course of study which,
in the opinion of the Board, qualifies the
optometrist to obtain and to have in his or her
possession and to use, sell or supply certain
Schedule 4 poisons within the meaning of the
10
Drugs, Poisons and Controlled Substances Act
1981, the Board may endorse the registration of
the optometrist and specify in the endorsement the
Schedule 4 poisons that the optometrist is
qualified to obtain and to have in his or her
15
possession and to use, sell or supply.
(2) An applicant for registration or a registered person
may apply to the Board for an endorsement under
this section.
(3) An application must be--
20
(a) in writing in the prescribed form and
accompanied by evidence of the
qualifications which the applicant claims
qualify him or her for the endorsement
applied for; and
25
(b) accompanied by the fee determined by the
Board.
(4) The Board--
(a) may require the applicant to provide further
information or material in respect of the
30
application; and
(b) may require that the information in the
application be verified by a declaration under
section 107 of the Evidence Act 1958.
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s. 12
Act No.
(5) The Board must not specify any Schedule 4
poison in an endorsement unless the poison is
approved by the Minister for the purposes of this
section.
12. Duration and renewal of registration
5
The registration of an optometrist which is not
specific or renewal of such registration continues
in force for 12 months after the grant or renewal
of registration.
13. Application for renewal of and refusal to renew
10
registration
(1) An application for renewal of registration which is
not specific--
(a) must be made to the Board before the
existing registration expires; and
15
(b) must be accompanied by the fee determined
by the Board.
(2) If a person does not apply for renewal of
registration before the end of the existing
registration period, the Board may renew that
20
person's registration if application is made within
3 months after the end of the registration period
and the applicant pays an additional renewal fee
determined by the Board which must not be more
than 50% of the original fee.
25
(3) If a person's registration has expired without being
renewed that person is deemed to be registered for
a period of 3 months after that expiry, and if, at
the end of that period of 3 months, that person has
not renewed his or her registration, the Board
30
must remove that person's name from the register.
(4) The Board may refuse to renew the registration of
an applicant under this Part on any ground on
which the Board might refuse to grant registration.
35
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s. 14 Act No.
14. Restoration of name to the register
If a person whose name has been removed from
the register under section 13(3)--
(a) applies to the Board within 2 years from the
date of that removal to have his or her name
5
restored to the register; and
(b) pays to the Board the fee fixed by the Board
for that purpose within that period--
the Board may restore that person's name to the
register.
10
15. Effect of suspension of registration
For the purposes of this Act, an optometrist whose
registration is suspended is deemed to be not
registered for the period of that suspension.
16. Registration obtained by fraud
15
(1) If the Board believes that the registration of an
optometrist has been obtained by fraud or
misrepresentation or that the qualifications upon
which the optometrist relied for registration have
been withdrawn the Board must conduct a hearing
20
into the matter.
(2) The Board must give notice of the time and place
of the hearing to the optometrist.
(3) The provisions applying to the conduct of a
formal hearing under Part 3 apply to a hearing
25
under this section as if a hearing under this section
were a formal hearing.
(4) If, at the end of the hearing, the Board determines
that the registration of the optometrist has been
obtained by fraud or misrepresentation or that the
30
qualifications upon which the optometrist has
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s. 17
Act No.
relied for registration have been withdrawn, the
Board must cancel the registration of the
optometrist.
Division 2--The Register
17. The Register
5
(1) The Board must cause to be kept a register of all
optometrists to whom the Board has granted
registration under this Act.
(2) The register is to be called the Register of
Optometrists.
10
(3) The following particulars must be included on the
register against the name of the optometrist to
whom they apply--
(a) any endorsement under section 11;
(b) any current suspension of the registration of
15
the optometrist;
(c) any current condition, limitation or
restriction imposed on the registration of the
optometrist;
(d) the prescribed information.
20
(4) The register may be inspected at the office of the
Board by any person during ordinary office hours
without charge.
(5) A person may obtain a copy of or an extract from
the register on payment of the fee determined by
25
the Board.
(6) A registered optometrist's private address must
not appear on that part of the register which is
open to the public for inspection, unless the
optometrist so authorises.
30
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s. 18 Act No.
18. Certificates
(1) Upon--
(a) granting registration to a person under this
Part; or
(b) renewing the registration of a person under
5
this Part--
the Board must issue a certificate of registration to
that person.
(2) The following particulars must be included on a
certificate of registration--
10
(a) any endorsement under section 11; and
(b) any condition, limitation or restriction
imposed on the registration of the
optometrist; and
(c) the prescribed information.
15
(3) If an optometrist's registration under this Part has
been suspended or cancelled, that optometrist
must return his or her certificate of registration to
the Board.
Penalty: 20 penalty units.
20
19. Use of certificate as evidence
A certificate purporting to be signed by the
President or any two members of the Board to the
effect that--
(a) an optometrist is or is not or was or was not,
25
at any specified date, registered; or
(b) the optometrist's registration is or is not or
was or was not, at any specified date,
endorsed under section 11; or
(c) that any disciplinary or other action is or is
30
not or was or was not, at any specified date,
being taken against that optometrist--
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s. 20
Act No.
is evidence, and, in the absence of evidence to the
contrary, is proof of the matters stated in it.
20. Requirement to notify the Board of change of address
A registered optometrist must notify the Board of
any change of the address of the optometrist
5
which appears on the register within 14 days after
that change having been made.
Penalty: 10 penalty units.
21. Notification of death by Registrar of Births, Deaths,
Marriages and Names
10
(1) Upon registering the death of any person
appearing from the records of the Registrar of
Births, Deaths, Marriages and Names to be a
registered optometrist, the Registrar must
immediately give notice of the death by post to the
15
Board.
(2) Upon receiving a notice under sub-section (1), the
Board must cause the name of the optometrist to
be removed from the register.
20 _______________
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s. 22 Act No.
PART 3--INVESTIGATIONS INTO REGISTERED
OPTOMETRISTS
Division 1--Preliminary investigations into professional
conduct
22. Complaints about the professional conduct of
5
optometrists
A person may make a complaint about a
registered optometrist to the Board.
23. When complaints about professional conduct are to be
investigated by Health Services Commissioner
10
(1) If the Board receives a complaint about a
registered optometrist, and the complaint is of a
kind which may be made under the Health
Services (Conciliation and Review) Act 1987,
the Board must notify the Health Services
15
Commissioner and give a copy of the complaint to
the Health Services Commissioner as soon as
possible after it has received the complaint.
(2) The Board, in consultation with the Health
Services Commissioner, must determine whether
20
or not the complaint is to be dealt with by the
Commissioner or the Board.
(3) The Health Services (Conciliation and Review)
Act 1987 applies to a complaint made under this
Part which is to be dealt with by the Health
25
Services Commissioner as if the complaint were
made under section 16 of that Act.
(4) The Board must not deal further with a complaint
made under this Part that is to be dealt with by the
Health Services Commissioner unless the Health
30
Services Commissioner refers the matter back to
the Board under section 19(6) of the Health
Services (Conciliation and Review) Act 1987.
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s. 24
Act No.
(5) If a complaint has been referred to and is being
dealt with by the Health Services Commissioner,
the Commissioner must advise the Board, when
the matter is completed, of the outcome of the
matter.
5
24. When complaints about professional conduct are to be
investigated by the Board
(1) The Board must investigate a complaint
concerning the professional conduct of a
registered optometrist unless--
10
(a) the complaint is to be dealt with by the
Health Services Commissioner under section
23; or
(b) the Board has determined the complaint to
be frivolous or vexatious.
15
(2) In order to determine whether or not it is
necessary to conduct a formal or informal hearing
into a complaint, the Board must conduct a
preliminary investigation into the complaint.
(3) The Board may, in writing, delegate to--
20
(a) an officer of the Board; or
(b) a lawyer or investigator retained by the
Board; or
(c) a sub-committee of the Board consisting of
not more than 3 members of the Board--
25
its power to conduct a preliminary investigation
into a complaint, other than its power to make
determinations upon a preliminary investigation.
25. Outcome of preliminary investigation
(1) Upon completing a preliminary investigation, the
30
person or persons conducting the investigation
may make one of the following
recommendations--
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(a) that the investigation into the matter should
not proceed further; or
(b) that an informal or formal hearing should be
held into the matter.
(2) The Board must determine whether or not to act
5
on the recommendations of the person or persons
conducting the preliminary investigation.
26. Board may institute a hearing into professional
conduct
The Board may, of its own motion, determine to
10
conduct a formal or informal hearing into the
professional conduct of a registered optometrist
without conducting a preliminary investigation.
27. Suspension of registration upon commencement of
investigation
15
(1) The Board, upon making a determination--
(a) to conduct a preliminary investigation into a
complaint made to the Board about the
professional conduct of a registered
optometrist; or
20
(b) to conduct a formal or informal hearing into
the professional conduct of a registered
optometrist without preliminary
investigation--
may suspend the registration of the optometrist
25
until any investigation and any hearing into the
matter is completed if the Board is of the opinion
that it is necessary to do so because there is a
serious risk that the health and safety of the public
will be endangered.
30
(2) If the Board has suspended the registration of an
optometrist under sub-section (1), it must--
(a) immediately notify the optometrist of that
suspension; and
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(b) ensure that the matter is investigated as soon
as possible after that suspension.
Division 2--Preliminary investigation into the health of
registered optometrists
28. Commencement of preliminary investigation
5
If the Board believes the ability of an optometrist
to practise optometry may be affected because--
(a) of the physical or mental health of the
optometrist; or
(b) the optometrist has an incapacity; or
10
(c) the optometrist is an alcoholic or drug-
dependent person--
the Board may appoint one of its members to
conduct a preliminary investigation into the
matter.
15
29. Notification to optometrist
(1) The member of the Board appointed to investigate
the matter must give notice of the preliminary
investigation to the optometrist.
(2) A notice under sub-section (1) must--
20
(a) be in writing; and
(b) be sent by registered post as soon as possible
after the Board's decision has been made;
and
(c) advise the optometrist of the nature of the
25
matter to be investigated; and
(d) ask the optometrist to advise the Board as to
whether or not he or she will agree to
undergo a medical examination within 28
days after receiving the notice; and
30
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(e) advise the optometrist of the procedures that
can be taken under this Part.
30. Medical examination
(1) If the optometrist agrees to undergo a medical
examination within 28 days, the optometrist must
5
be examined by a registered medical practitioner
who is agreed upon by the Board and the
optometrist.
(2) If the Board and the optometrist are unable to
agree upon a registered medical practitioner to
10
conduct the examination, the Minister must
appoint a registered medical practitioner to
perform the examination.
(3) The Board must pay for the examination.
31. Report of examination
15
(1) The examining medical practitioner must give a
report of his or her examination to the member of
the Board appointed to investigate the matter, and,
not more than 7 days later, to the optometrist
being investigated.
20
(2) The person appointed to investigate the matter
must discuss the report with the optometrist, and,
in the case of an adverse finding in the report, the
possible ways of dealing with that finding.
(3) After discussing the report with the optometrist,
25
the person appointed to investigate the matter
must report to the Board.
(4) Despite sub-section (1), if the report contains
information of a medical or psychiatric nature
concerning the optometrist, and it appears to the
30
person appointed to conduct the investigation that
the disclosure of that information to the
optometrist might be prejudicial to the physical or
mental health or well being of the optometrist, the
investigator may decide not to give that
35
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information to the optometrist but to give it
instead to another optometrist nominated by that
optometrist.
(5) Before acting under sub-section (4), the
investigator must report to the Board and, if the
5
investigator is not an optometrist and the Board is
of the opinion that it is necessary for the
investigation of the matter to be continued by an
optometrist, the Board may appoint an optometrist
to continue the investigation.
10
32. Outcome of preliminary investigation
(1) If, after considering the reports given under
section 31, the Board decides that further action
should be taken, the Board must ask the
optometrist whether or not he or she is prepared to
15
agree to--
(a) alter the way in which he or she practises
optometry; or
(b) the imposition of conditions, limitations or
restrictions on his or her registration; or
20
(c) the alteration or cancellation of any
endorsement of registration under section 11;
or
(d) the suspension of his or her registration for
the period of time specified by the Board.
25
(2) The Board may take any action that is necessary
to implement an agreement under sub-section (1).
33. Referral to formal hearing
If a registered optometrist who is the subject of a
preliminary investigation under this Division--
30
(a) does not agree to undergo a medical
examination or does not abide by an
agreement to undergo a medical
examination; or
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(b) does not reach an agreement with the Board
under section 32 or does not abide by an
agreement reached with the Board under
section 32--
the Board may refer the matter to a formal
5
hearing.
34. Request for conditions, limitations or restrictions
(1) A registered optometrist who believes that his or
her ability to practise optometry is affected
because--
10
(a) of his or her physical or mental health; or
(b) he or she has an incapacity; or
(c) he or she is an alcoholic or drug-dependent
person--
may ask the Board to impose a condition,
15
limitation or restriction on his or her practice.
(2) If the Board and the optometrist agree upon the
condition, limitation or restriction to be imposed,
the Board may impose it.
(3) If the optometrist and the Board do not agree upon
20
the condition, limitation or restriction to be
imposed, the Board must refer the matter to a
preliminary investigation.
35. Revocation of suspension of registration or condition,
limitation or restriction imposed on registration
25
The Board may revoke a condition, limitation or
restriction imposed on the registration of a
registered optometrist or the suspension of a
registered optometrist's registration, if the
optometrist satisfies the Board that his or her
30
ability to practise optometry is no longer affected.
36. Immediate suspension of registration
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(1) If the Board has referred a matter to a formal
hearing under this Division, the Board may
suspend the registration of the optometrist until
the hearing is completed, if the Board is of the
opinion that the ability of the optometrist to
5
practise optometry is affected to such an extent
that to allow the optometrist to continue to
practise would pose a serious risk that the health
and safety of the public will be endangered.
(2) If the Board has suspended the registration of an
10
optometrist under subsection (1), it must--
(a) immediately notify the optometrist of that
suspension; and
(b) ensure that the matter is investigated as soon
as possible after that suspension.
15
Division 3--Formal and Informal Hearings
37. Establishment and notification of an informal
hearing
If the Board has determined under section 25 or
26 that an informal hearing be held into the
20
professional conduct of a registered optometrist,
the Board must--
(a) appoint a panel to hold the hearing; and
(b) fix a time and place for the hearing to be
held; and
25
(c) by registered post, serve a notice on the
optometrist which complies with section 39;
and
(d) serve notice on any complainant by
registered post under section 55(4)(a) and
30
(b).
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38. Constitution of a panel for an informal hearing
(1) A panel appointed under section 37 is to consist of
not more than 3 persons--
(a) who are to be members of the Board; and
(b) of whom, at least 1 is to be a registered
5
optometrist.
(2) If--
(a) the Board is unable to appoint a panel
because there are not enough members
available to sit on it; or
10
(b) the Board is of the opinion that a person with
special expertise is required for the
hearing--
the Governor in Council may appoint persons who
are not members of the Board to fill the vacant
15
positions on the panel.
(3) A person who has undertaken a preliminary
investigation of the matter is not entitled to be a
member of the panel.
39. Notice of an informal hearing
20
A notice of an informal hearing under section 37
must--
(a) state the nature of the hearing and the
allegations made against the optometrist; and
(b) give the time and place of the hearing; and
25
(c) state that the optometrist may choose to have
the matter determined by a formal hearing
and state the differences between a formal
and informal hearing; and
(d) state that there is no right to legal
30
representation at the hearing, but that the
optometrist is entitled to be present and to
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make submissions and to be accompanied by
another person, that the hearing is not open
to the public and list the possible findings
the panel can make or orders the panel can
give.
5
40. Conduct of an informal hearing
At an informal hearing--
(a) the panel must hear and determine the matter
before it; and
(b) the optometrist who is the subject of the
10
hearing is entitled to be present, to make
submissions and to be accompanied by
another person but is not entitled to be
represented; and
(c) the proceedings of the hearing must not be
15
open to the public.
41. Findings and determinations of an informal hearing
(1) After considering all the submissions made to the
hearing the panel may find either--
(a) that the optometrist has, whether by act or
20
omission, engaged in unprofessional conduct
which is not of a serious nature; or
(b) that the optometrist has not engaged in
unprofessional conduct.
(2) If the panel finds that the optometrist has, whether
25
by act or omission, engaged in unprofessional
conduct which is not of a serious nature, the panel
may make one or more of the following
determinations--
(a) that the optometrist undergo counselling;
30
(b) that the optometrist be cautioned;
(c) that the optometrist be reprimanded.
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42. Change of informal hearing to formal hearing during
course of hearing
If, before the end of the hearing--
(a) the optometrist who is the subject of the
hearing fails to attend the hearing without
5
good cause; or
(b) the optometrist requests that a formal hearing
be held; or
(c) the panel is of the opinion that a formal
hearing should be held--
10
the panel must abandon the informal hearing and
refer the matter to a formal hearing.
43. Request for formal hearing upon completion of
informal hearing
Upon the completion of an informal hearing, the
15
optometrist who was the subject of the hearing
may request that a formal hearing be held to
review any findings and determinations of the
informal hearing.
44. Establishment and notification of formal hearing
20
If--
(a) the Board has determined that a formal
hearing be held under section 25 or 26 or has
referred a matter to a formal hearing under
section 33; or
25
(b) an optometrist has requested a formal
hearing under section 43; or
(c) a panel has referred a matter to a formal
hearing under section 42--
the Board must--
30
(d) appoint a panel to hold the hearing; and
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(e) fix a time and place for the hearing to be
conducted; and
(f) serve a notice on the optometrist by
registered post which complies with section
46; and
5
(g) serve a notice on any complainant by
registered post under section 55(4)(a) and
(b).
45. Constitution of a hearing panel for a formal hearing
(1) A panel appointed under section 44 must consist
10
of not less than 3 persons--
(a) who are to be members of the Board; and
(b) of whom 1 is to be a lawyer and at least 1 is
to be a registered optometrist.
(2) If--
15
(a) the Board is unable to appoint a panel
because there are not enough members
available to sit on it; or
(b) the Board is of the opinion that a person with
special expertise is required for the
20
hearing--
the Governor in Council may appoint persons who
are not members of the Board to fill the vacant
positions on the panel.
(3) The following people are not entitled to be
25
members of a panel for a formal hearing--
(a) a person who has undertaken a preliminary
investigation of the matter which is the
subject of the hearing;
(b) a person who has been a member of a panel
30
which held an informal hearing into the
matter.
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46. Notice of a formal hearing
A notice of a formal hearing under section 44
must--
(a) state the nature of the hearing and the
allegations made against the optometrist; and
5
(b) give the time and place of the hearing; and
(c) state that there is a right to make submissions
and to be represented, that the hearing is
open to the public, list the possible findings
the panel can make and state that there is a
10
right to apply for review of the panel's
findings.
47. Conduct of a formal hearing
At a formal hearing--
(a) the hearing panel must hear and determine
15
the matter before it; and
(b) the optometrist who is the subject of the
hearing is entitled to be present, to make
submissions and to be represented; and
(c) if the hearing arises out of a complaint, the
20
identity of the complainant is not to be
published or broadcast and the
complainant--
(i) in the case of proceedings which have
not been closed under paragraph (d), is
25
entitled to be present; and
(ii) if not called as a witness, may make
submissions with the permission of the
Board; and
(d) the proceedings are to be open to the public
30
unless the panel determines that the
proceedings should be closed because the
hearing is taking evidence of intimate,
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personal or financial matters and, if the panel
has determined that the proceedings are
closed, the panel may determine that the
identity of any witness giving evidence in
the proceedings is not to be published or
5
broadcast.
48. Findings and determinations of a formal hearing into
conduct
(1) After considering all the submissions made to a
formal hearing into the professional conduct of a
10
registered optometrist the panel may find that--
(a) the optometrist has, whether by act or
omission, engaged in unprofessional conduct
of a serious nature; or
(b) the optometrist has, whether by act or
15
omission, engaged in unprofessional conduct
which is not of a serious nature; or
(c) the optometrist has not engaged in
unprofessional conduct.
(2) If the panel finds that the optometrist has, whether
20
by act or omission, engaged in unprofessional
conduct of a serious nature, the panel may make
one or more of the following determinations--
(a) require the optometrist to undergo
counselling;
25
(b) caution the optometrist;
(c) reprimand the optometrist;
(d) require the optometrist to undertake further
education of the kind stated in the
determination and to complete it within the
30
period specified in the determination;
(e) impose conditions, limitations or restrictions
on the registration of the optometrist;
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(f) impose a fine on the optometrist of not more
than $2000;
(g) alter or cancel any endorsement under
section 11 of the registration of the
optometrist;
5
(h) suspend the registration of the optometrist
for the period specified in the determination;
(i) cancel the registration of the optometrist.
(3) If the panel finds under sub-section (1)(b) that the
optometrist has, whether by act or omission,
10
engaged in unprofessional conduct which is not of
a serious nature, the panel may make any
determination which a panel at an informal
hearing is able to make upon making such a
finding.
15
(4) The panel must not impose a fine where the
conduct which is the subject of the finding has
resulted in a fine being imposed by another
tribunal or court of law.
(5) If the panel has made an order under sub-section
20
(2)(a) or (d) and the optometrist has not complied
with the order within the time specified in the
order, the Board may suspend the optometrist's
registration until the order is complied with.
49. Findings and determinations of a formal hearing into
25
ability to practise
(1) After considering all the submissions made to a
formal hearing into the ability to practise of a
registered optometrist, the panel may find that--
(a) the ability of the optometrist to practise is
30
affected because--
(i) of the physical or mental health of the
optometrist; or
(ii) the optometrist has an incapacity; or
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(iii) the optometrist is an alcoholic or drug-
dependent person; or
(b) the ability of the optometrist is not affected.
(2) If the panel makes a finding under sub-section
(1)(a), the panel may make one or more of the
5
following determinations--
(a) to impose conditions, limitations or
restrictions on the registration of the
optometrist;
(b) to suspend the registration of the optometrist
10
for the period and subject to the conditions,
limitations and restrictions, if any, specified
in the determination.
Division 4--General Provisions relating to Investigations
50. Procedure at formal and informal hearings
15
At a formal or informal hearing--
(a) subject to this Part, the procedure of a panel
is in its discretion; and
(b) the proceedings must be conducted with as
little formality and technicality as the
20
requirements of this Act and the proper
consideration of the matter permit; and
(c) a panel is not bound by rules of evidence but
may inform itself in any way it thinks fit;
and
25
(d) a panel is bound by the rules of natural
justice.
51. Powers of panel conducting a formal hearing
Sections 14, 15, 16 and 21A of the Evidence Act
1958 apply to a panel in the conduct of a formal
30
hearing as if it were a Board or the Chairman of a
Board appointed by the Governor in Council.
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52. Determinations
(1) A determination made by a panel on a hearing
comes into operation on its making or at any later
time stated in the determination.
(2) A determination of a panel is to have effect as if it
5
were a determination of the Board.
(3) If a fine is imposed by a panel it may be recovered
by the Board as a debt due to the Board.
53. Removal of suspension, condition, limitation or
restriction
10
(1) If the Board has suspended the registration of an
optometrist until the completion of a hearing and,
at the completion of the hearing, the panel
determines that the suspension should be
removed, the Board must remove the suspension.
15
(2) If a condition, limitation or restriction has been
imposed on the registration of an optometrist and,
at the completion of a hearing, the panel
determines that the condition, limitation or
restriction should be removed, the Board must
20
remove that condition, limitation or restriction.
54. Reasons for determinations of panel or Board
(1) A panel must give reasons for a determination
made under this Part to the optometrist who was
the subject of the determination within 28 days
25
after the making of the determination.
(2) A person affected by a determination of a panel
may apply to the panel for the reasons for that
determination.
(3) An application under sub-section (2) must be
30
made within 45 days after the making of the
determination and reasons must be given to the
applicant within 45 days of receiving the
application.
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55. Notifications
(1) If a determination has been made by a panel--
(a) imposing conditions, limitations or
restrictions on the registration of an
optometrist; or
5
(b) suspending the registration of an optometrist;
or
(c) cancelling the registration of an optometrist;
or
(d) cancelling or altering the endorsement of the
10
registration of the optometrist--
the Board must give notice of the determination--
(e) in the Government Gazette; and
(f) to the optometry registration authorities in
all other States or Territories of the
15
Commonwealth and in New Zealand; and
(g) to the Health Services Commissioner; and
(h) if the optometrist is an employee, to his or
her employer; and
(i) if the Board has received a request for
20
information about the person in respect of
whom the determination has been made from
an optometry registration authority outside
Australia, that authority.
(2) Notice under sub-section (1) must be given as
25
soon as possible after the determination has been
made.
(3) No action for defamation lies against the Board or
its members for giving a notice under this section.
(4) If a complaint has been made to the Board, the
30
Board must notify the complainant--
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(a) of whether or not a formal or informal
hearing is to be conducted into the matter
and, if so, of the time and place of the
hearing and, in the case of a formal hearing,
of the fact that the complainant's identity is
5
not to be published or broadcast; and
(b) in the case of a formal or informal hearing,
of whether or not the complainant has any
right to make submissions at the hearing; and
(c) of the findings and determinations of any
10
hearing arising from that complaint and the
reasons for those findings and
determinations, within 28 days of their
having been made.
56. Offence to disclose information identifying
15
complainant
A person must not publish or broadcast or cause
to be published or broadcast any report of a formal
hearing under this Part which contains
information which would enable--
20
(a) the complainant to be identified; or
(b) if the panel has made a determination
prohibiting the publication or broadcast of
the identity of a witness, that witness to be
identified--
25
unless the complainant or witness has, before
publication or broadcast, consented to this.
Penalty: 50 penalty units for a natural person or
100 penalty units for a body corporate.
30
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57. Terms and conditions of appointment of panel
members
(1) A member of a panel, whether appointed by the
Board or the Governor in Council, is appointed on
the terms and conditions determined by the Board
5
for that member.
(2) A member of a panel, other than a member who is
an officer or employee of the public service within
the meaning of the Public Sector Management
Act 1992, is entitled to receive the fees that are
10
fixed from time to time by the Governor in
Council for members of panels.
(3) A member of a panel is entitled to receive the
allowances that are fixed from time to time by the
Governor in Council.
15
(4) In fixing fees under sub-section (2), the Governor
in Council may fix different fees for different
classes of cases.
(5) The Governor in Council may fix fees and
allowances by reference to the regulations or
20
guidelines made under the Public Sector
Management Act 1992.
_______________
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PART 4--REVIEW BY ADMINISTRATIVE APPEALS
TRIBUNAL
58. Review by AAT
(1) Without limiting section 27 of the Administrative
Appeals Tribunal Act 1984 a person may apply
5
to the Administrative Appeals Tribunal for review
of--
(a) a decision to refuse a person's application for
registration or renewal of registration; or
(b) a decision to impose conditions, limitations
10
or restrictions on a person's registration; or
(c) a decision of the Board to suspend the
registration of a person, if the Board has not
instituted an investigation into the
professional conduct or ability to practise of
15
that person within a reasonable time of
having suspended that registration; or
(d) a finding or determination made at a formal
hearing under Part 3.
(2) The application must be made within 28 days of
20
the date on which the Board gives notice of the
decision or determination to the person concerned.
(3) If a provision of this section is inconsistent with a
provision of the Administrative Appeals
Tribunal Act 1984, the provision of this section
25
prevails.
59. Notification
If a decision or determination has been reviewed
by the Administrative Appeals Tribunal, the
Board must notify any person who was notified of
30
the
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original decision or determination of any change
to that decision or determination by the
Administrative Appeals Tribunal.
_______________
5
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PART 5--OFFENCES
60. Unregistered persons
(1) A person must not practise optometry unless the
person is registered under this Act.
Penalty: 100 penalty units.
5
(2) Sub-section (1) does not apply to a person who is
registered as an orthoptist with the Orthoptic
Association of Australia Incorporated or the sub-
committee of the Royal Australian College of
Ophthalmologists known as the Orthoptic Board
10
of Australia if that person is--
(a) measuring refraction and prescribing lenses
or prisms for the aid of the power of vision
that are not in the form of contact lenses; and
(b) doing so at the request of, or on the referral
15
of, a registered optometrist or a registered
medical practitioner who practises as an
ophthalmologist where the request or referral
has been made within 6 months before that
measurement or prescription.
20
61. Claims by persons as to registration
(1) A person who is not a registered optometrist must
not--
(a) take or use the title of registered optometrist
or any other title calculated to induce a belief
25
that the person is registered under this Act;
or
(b) claim to be registered under this Act or hold
himself or herself out as being registered
under this Act; or
30
(c) carry out any act which is required to be
carried out by a registered optometrist by or
under an Act; or
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(d) claim to be qualified to practise as an
optometrist.
Penalty: 50 penalty units.
(2) A registered optometrist whose registration is
specific must not--
5
(a) take or use any title calculated to induce a
belief that the optometrist's registration is not
specific; or
(b) claim to have or hold himself or herself out
as having general registration.
10
Penalty: 50 penalty units.
(3) A registered optometrist whose registration is
subject to a condition, limitation or restriction
must not--
(a) take or use any title calculated to induce a
15
belief that the optometrist's registration is not
subject to a condition, limitation or
restriction; or
(b) claim to have or hold himself or herself out
as having a registration which is not subject
20
to any condition, limitation or restriction.
Penalty: 50 penalty units.
(4) A person must not hold out another person as
being registered under this Act, if the person
knows or ought reasonably to know that the other
25
person is not so registered.
Penalty: 50 penalty units.
(5) If a body corporate contravenes sub-section (1),
any person who is concerned in or takes part in
the management of that body corporate who was,
30
in any way, by act or omission, directly or
indirectly, knowingly concerned in or party to the
commission of the offence also commits an
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offence under sub-section (1) and is liable for the
penalty applicable to a natural person for that
offence.
62. Fraud, forgery etc.
A person must not--
5
(a) fraudulently or by false representation or
declaration (either orally or in writing)
obtain registration under this Act; or
(b) fraudulently or by false representation (either
orally or in writing) procure any person to be
10
registered under this Act; or
(c) forge, counterfeit or alter any certificate of
registration under this Act or any degree,
diploma or other evidence of qualifications
for registration under this Act; or
15
(d) aid in the commission of an offence under
paragraph (a), (b) or (c).
Penalty: 100 penalty units or imprisonment for a
period of 2 years or both.
63. Advertising
20
(1) A person must not advertise an optometry practice
or optometry services in a manner which--
(a) is or is intended to be false, misleading or
deceptive; or
(b) offers a discount, gift or other inducement to
25
attract patients to an optometrist or
optometry practice unless the advertisement
also sets out the terms and conditions of that
offer; or
(c) refers to uses or quotes from testimonials or
30
purported testimonials; or
(d) unfavourably contrasts optometry services
provided by an optometrist or optometry
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practice with services provided by another
optometrist or optometry practice.
Penalty: 50 penalty units for a natural person or
100 penalty units for a
body corporate.
5
(2) If a body corporate contravenes sub-section (1),
any person who is concerned in or takes part in
the management of that body corporate who was,
in any way, by act or omission, directly or
indirectly, knowingly concerned in or party to the
10
commission of the offence also commits an
offence under sub-section (1) and is liable for the
penalty applicable to a natural person for that
offence.
(3) A person who, in good faith, publishes or prints
15
an advertisement which contravenes sub-section
(1) on behalf of another person, is not guilty of an
offence under that sub-section.
64. Exemptions
Nothing in section 60 or 61 applies in relation to
20
an optometry practice conducted by or at the
premises of--
(a) The University of Melbourne;
(b) any university, school or other institution or
organisation conducting instruction or
25
research in optometry;
(c) any public or denominational hospital or
multi purpose service within the meaning of
the Health Services Act 1988.
30 _______________
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PART 6--ADMINISTRATION
65. Establishment of Board
(1) There is established a Board to be called the
Optometrists Registration Board of Victoria.
(2) The Board--
5
(a) is a body corporate with perpetual
succession; and
(b) has a common seal; and
(c) may sue and be sued in its corporate name;
and
10
(d) may acquire, hold and dispose of real and
personal property; and
(e) may do and suffer all acts and things that a
body corporate may, by law, do and suffer.
(3) The common seal must be kept as directed by the
15
Board and must not be used except as authorised
by the Board.
(4) All courts must take judicial notice of the seal of
the Board on a document and, until the contrary is
proved, must presume that the document was
20
properly sealed.
66. Powers, functions and consultation requirements
(1) The Board has the following functions--
(a) to register persons who comply with the
requirements of this Act as to registration so
25
that they may practise optometry in Victoria;
(b) to approve courses which provide
qualifications for registration and practice as
optometrists;
(c) to regulate the standards of practice of
30
optometry;
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(d) to investigate the professional conduct or
fitness to practise of registered optometrists
and impose sanctions where necessary;
(e) to issue guidelines about appropriate
standards of optometry practice;
5
(f) to advise the Minister on any matters relating
to its functions;
(g) when so requested by the Minister, give to
the Minister any information reasonably
required by the Minister;
10
(h) any other functions conferred on the Board
by this Act.
(2) The Board has all the powers necessary to enable
it to perform its functions.
(3) The Board must consult with the Minister and
15
have regard to the Minister's advice in carrying
out its functions and exercising its powers.
67. Membership of the Board
(1) The Board consists of 8 members nominated by
the Minister and appointed by the Governor in
20
Council.
(2) Of the persons appointed to the Board--
(a) 5 must be registered optometrists; and
(b) one must be a lawyer; and
(c) 2 must be persons who are not optometrists.
25
68. Terms of office
(1) A member of the Board holds office for not more
than 3 years from the date of his or her
appointment.
(2) A member of the Board is eligible for
30
reappointment.
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(3) The Public Sector Management Act 1992
(except Part 9 or in accordance with Part 8) does
not apply to a member in respect of the office of
member.
69. Resignation and removal
5
(1) A member of the Board ceases to be a member if
he or she is absent, without leave first being
granted by the Board, from 3 consecutive
meetings of which reasonable notice has been
given to that member, either personally or by post.
10
(2) A member of the Board may resign the office of
member by writing signed by the member and
addressed to the Governor in Council.
(3) The Governor in Council may at any time remove
a member of the Board from office.
15
(4) If a member of the Board dies, resigns or is
removed from office, the Governor in Council
may, in accordance with this Act, on the
recommendation of the Minister, fill the vacant
office.
20
(5) A member appointed under sub-section (4) holds
office for the rest of the term of appointment of
the member whose place he or she fills.
70. President and Deputy President
(1) The Governor in Council may appoint members of
25
the Board who are registered optometrists to be
President and Deputy President of the Board.
(2) A person appointed to an office under sub-section
(1) holds office for the term specified in his or her
instrument of appointment and is eligible for
30
reappointment.
(3) A person appointed to an office under sub-section
(1) may resign that office by writing signed by the
person and addressed to the Governor in Council.
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(4) The Governor in Council may at any time remove
a person appointed under sub-section (1) from
office.
(5) A person appointed to an office under sub-section
(1) ceases to hold that office on ceasing to be a
5
member of the Board.
71. Acting member
(1) If a member of the Board is unable to perform the
duties or functions of the office, the Governor in
Council may appoint a person qualified to be
10
appointed as that member to act as the member
during the period of inability.
(2) The Governor in Council--
(a) subject to this Act, may determine the terms
and conditions of appointment of an acting
15
member; and
(b) may at any time terminate the appointment.
(3) While the appointment of an acting member
remains in force, the acting member has and may
exercise all the powers and perform all the duties
20
and functions of the member.
72. Payment of members
(1) A member or acting member of the Board, other
than a member who is an officer or employee of
the public service within the meaning of the
25
Public Sector Management Act 1992, is entitled
to receive the fees that are fixed from time to time
by the Governor in Council for that member.
(2) Each member or acting member of the Board is
entitled to receive the allowances that are fixed
30
from time to time by the Governor in Council.
(3) The Governor in Council may fix these fees or
allowances by reference to regulations or
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guidelines made under the Public Sector
Management Act 1992.
73. Procedure of Board
(1) The President or, in the absence of the President,
the Deputy President must preside at a meeting of
5
the Board at which he or she is present.
(2) If neither the President nor Deputy President are
present at a meeting the members present may
elect a member to preside at the meeting.
(3) The person presiding at a meeting has a
10
deliberative vote and a second or casting vote.
(4) A majority of the members of the Board currently
holding office constitutes a quorum.
(5) Subject to this Act, the Board may regulate its
own proceedings.
15
74. Member's interests
(1) A member who has a pecuniary or other interest in
any matter in which the Board is concerned
must--
(a) if the member is present at a meeting of the
20
Board at which the matter is to be
considered, disclose the nature of the interest
immediately before the consideration of that
matter; or
(b) if the member is aware that the matter is to
25
be considered at a meeting of the Board at
which the member does not intend to be
present, disclose the nature of the interest to
the President or Deputy President of the
Board before the meeting is held.
30
(2) The member--
(a) may take part in the discussion in the
meeting; and
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(b) must leave the meeting while any vote is
taken on a question relating to the matter.
75. Resolutions without meetings
(1) If--
(a) the Board has taken reasonable steps to give
5
notice to each member setting out the terms
of a proposed resolution; and
(b) a majority of the members for the time being
sign a document containing a statement that
they are in favour of the resolution in the
10
terms set out in the document--
a resolution in those terms is deemed to have been
passed at a meeting of the Board held on the day
on which the document is signed or, if the
members referred to in paragraph (b) do not sign it
15
on the same day, on the day on which the last of
those members signs the document.
(2) If a resolution is, under sub-section (1), deemed to
have been passed at a meeting of the Board, each
member must as soon as practicable be advised of
20
the matter and given a copy of the resolution.
(3) For the purposes of sub-section (1), 2 or more
separate documents containing a statement in
identical terms, each of which is signed by one or
more members, are deemed to constitute one
25
document.
(4) The majority of members referred to in sub-
section (1)(b) must not include a member who,
because of section 74, is not entitled to vote on the
resolution.
30
(5) This section does not apply to any resolution of
the Board relating to a matter being considered
under Part 3.
76. Approved methods of communication for Board
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(1) If not less than two thirds of the members of the
Board for the time being holding office so agree, a
meeting of the Board may be held by means of a
method of communication, or by means of a
combination of methods of communication,
5
approved by the President of the Board for the
purposes of that meeting.
(2) For the purposes of this Part, a member of the
Board who participates in a meeting held as
permitted by sub-section (1) is present at the
10
meeting even if he or she is not physically present
at the same place as another member participating
in the meeting.
(3) This section--
(a) applies to a meeting or a part of a meeting;
15
and
(b) does not apply to a meeting conducted for
the purposes of Part 3.
77. Effect of vacancy or defect
An act or decision of the Board is not invalid only
20
because--
(a) of a vacancy in its membership; or
(b) of a defect or irregularity in the appointment
of any of its members; or
(c) in the case of an acting member, the
25
occasion for that member so acting had not
arisen or had ceased.
78. Immunity
(1) A member of the Board or person responsible for
keeping the register is not personally liable for
30
anything done or omitted to be done in good
faith--
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(a) in the exercise of a power or the discharge of
a duty under this Act or the regulations; or
(b) in the reasonable belief that the act or
omission was in the exercise of a power or
the discharge of a duty under this Act or the
5
regulations.
(2) Any liability resulting from an act or omission
that would, but for sub-section (1), attach to a
member of the Board or the person responsible for
keeping the register attaches instead to the Board.
10
79. Staff
The Board may employ a person to be responsible
for maintaining the register and any other persons
that are necessary for the purposes of
administering this Act.
15
80. Delegation
The Board may, in writing, delegate to--
(a) a member of the Board; or
(b) the person responsible for maintaining the
register or any other member of the staff of
20
the Board--
its powers and functions under this Act, other
than--
(c) the power to refuse to grant or refuse to
renew registration; or
25
(d) the power to impose or to amend, vary or
revoke conditions, limitations or restrictions
on registration; or
(e) the power to conduct any hearing or to make
any determination under Part 2 or Part 3; or
30
(f) this power to delegate.
_______________
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PART 7--REPORTING AND FINANCIAL PROVISIONS
81. Optometrists Registration Board Fund
(1) The Board must establish and keep an
Optometrists Registration Board Fund.
(2) All fees, fines and penalties paid or recovered by
5
the Board under this Act must be paid into the
Fund.
(3) The Board must pay any other money received by
it into the Fund, including income from the
investments of the Fund.
10
(4) Out of the Fund, the Board must pay--
(a) the expenses incurred by it in carrying out its
functions, powers and duties; and
(b) any other expenses incurred in the
administration of this Act; and
15
(c) any payments to be made to members of the
Board under this Act and any payments to be
made to other persons under this Act; and
(d) any other payments recommended by the
Board and approved by the Minister.
20
82. Investment powers
The Board may invest money credited to the Fund
that it does not immediately require--
(a) in any manner in which money may be
invested under the Trustee Act 1958; or
25
(b) in any other manner that the Minister
approves.
83. Repayment of advances
(1) The Board must pay into the public account the
amounts that the Minister administering section
30
14 of the Financial Management Act 1994, in
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consultation with the Treasurer, determines are
required to repay advances from the Public
Account for the establishment and operation of the
Board, including costs incurred before the
establishment of the Board to ensure that, when
5
established, it can operate in a fully effective way.
(2) Payments under sub-section (1) must be made in
accordance with any other terms and conditions
from time to time determined by the Minister
administering section 14 of the Financial
10
Management Act 1994 in consultation with the
Treasurer.
(3) The Board must, as and when directed to do so by
the Minister administering section 14 of the
Financial Management Act 1994, provide a plan
15
for the repayment of advances referred to in sub-
section (1).
(4) The Board must, at least once in each period of 6
months after the commencement of this section,
and at any other time that the Minister
20
administering section 14 of the Financial
Management Act 1994 directs it to do so, report
to that Minister in writing on its progress in
making payments under sub-section (1).
25 _______________
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PART 8--ENFORCEMENT AND SUPPLEMENTARY
POWERS
84. Proceedings for offences
(1) The person responsible for maintaining the
register or any other officer authorised by the
5
Board may take proceedings under this Act in the
name of the Board.
(2) Any prosecution instituted in the name of the
Board must, in the absence of evidence to the
contrary, be taken to have been instituted by the
10
Board.
85. Identification
(1) The Board must issue an identification card to
each person appointed by the Board to apply for
and execute search warrants for the purposes of
15
this Act.
(2) A person appointed by the Board must, in the
course of performing his or her functions under
this Act, produce his or her identification card to
any person who requests its production.
20
86. Powers of entry with warrant
(1) A person appointed for that purpose by the Board
may apply to a magistrate for the issue of a search
warrant in relation to particular premises if that
person believes, on reasonable grounds--
25
(a) that there is or has been a contravention of
this Act or the regulations on the premises;
or
(b) that entry into or onto the premises is
necessary for the purpose of investigating a
30
complaint made under this Act which, if
substantiated, may provide grounds for the
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suspension or cancellation of registration of
a registered optometrist.
(2) If a magistrate is satisfied by evidence on oath,
whether oral or by affidavit, that there are
reasonable grounds for suspecting that there is on
5
the premises a particular thing that may be
evidence of the commission of an offence against
this Act or the regulations or of grounds for the
suspension or cancellation of the registration of an
optometrist, the magistrate may issue a search
10
warrant authorising any person named in the
warrant--
(a) to enter the premises, or the part of the
premises, named or described in the warrant;
and
15
(b) to search for and seize a thing named or
described in the warrant; and
(c) to bring the thing before the Court so that the
matter may be dealt with according to law.
(3) In addition to any other requirement, a search
20
warrant issued for the purposes of this section
must state--
(a) the offence or grounds of suspension or
cancellation suspected; and
(b) the premises to be searched; and
25
(c) a description of the thing to be searched for;
and
(d) any conditions to which the warrant is
subject; and
(e) whether entry is authorised to be made at any
30
time or during stated hours; and
(f) a day, not later than 7 days after the issue of
the warrant, on which the warrant ceases to
have effect.
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(4) A search warrant must be issued in accordance
with the Magistrates' Courts Act 1989 and in a
form prescribed under that Act.
(5) The rules to be observed with respect to search
warrants mentioned in the Magistrates' Courts
5
Act 1989 extend and apply to warrants under this
section.
87. Announcement before entry
(1) Immediately before executing a search warrant, a
person named in the warrant must announce that
10
he or she is authorised by the warrant to enter the
premises.
(2) The person need not comply with sub-section (1)
if he or she believes on reasonable grounds that
immediate entry to the premises is required to
15
ensure the safety of any person or that the
effective execution of the search warrant is not
frustrated.
88. Copy of warrant to be given to occupier
If the occupier or another person who apparently
20
represents the occupier is present at premises
when a search warrant is being executed, the
person or persons named in the warrant must--
(a) identify themselves to that person by
producing their identification card for
25
inspection by that person; and
(b) give to that person a copy of the execution
copy of the warrant.
89. Copies or receipts to be given
(1) If a person seizes--
30
(a) a document, disk or tape or other thing that
can be readily copied; or
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(b) a storage device the information in which
can be readily copied--
under a warrant the person, on request by the
occupier, must give a copy of the thing or
information to the occupier as soon as practicable
5
after the seizure.
(2) If a person seizes a thing under a warrant and has
not provided a copy of the thing or information
under sub-section (1) the person must provide a
receipt for that thing as soon as practicable after
10
the seizure.
90. Powers of Board in relation to fees
(1) In the case of any fee which the Board is
empowered to fix under this Act--
(a) the Board must fix the fee for a period of 12
15
months and may amend or vary the fee at the
end of that period; and
(b) the Board may fix a different fee for a
different case and may allow for the
reduction, waiver or refund, in whole or in
20
part, of any fee; and
(c) the Board must publish any fee it has fixed
in a newspaper circulating generally
throughout Victoria and in the Government
Gazette.
25
(2) In fixing fees under this Act the Board is entitled
to ensure that the amount of money collected in
fees under this Act is sufficient to cover the cost
to the Board of administering this Act.
30 _______________
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PART 9--REGULATIONS
91. Supreme Court--Limitation of jurisdiction
It is the intention of this section to alter or vary
section 85 of the Constitution Act 1975 to the
extent necessary to prevent the bringing before the
5
Supreme Court of actions of the kind referred to in
section 55.
92. Regulations
(1) The Governor in Council may make regulations
for or with respect to--
10
(a) registration, renewal of registration,
endorsement of registration and applications
for registration, renewal of registration and
endorsement of registration;
(b) the register, including particulars to be noted
15
on the register and the manner of keeping the
register;
(c) forms for the purposes of this Act;
(d) time limits for the purposes of this Act;
(e) penalties, not exceeding 10 penalty units, for
20
breaches of the regulations;
(f) any matter or thing required or permitted to
be prescribed or necessary to be prescribed
to give effect to this Act.
(2) The regulations--
25
(a) may be of general or limited application; and
(b) may differ according to differences in time,
place or circumstance; and
(c) may apply, adopt or incorporate any matter
contained in any document, code, standard,
30
rule, specification or method, formulated,
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issued, prescribed or published by any
person whether--
(i) wholly or partially or as amended by
the regulations; or
(ii) as formulated, issued, prescribed or
5
published at the time the regulations are
made or at any time before then; or
(iii) as formulated, issued, prescribed or
published from time to time; and
(d) may leave anything for the approval or
10
satisfaction of a specified person.
_______________
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PART 10--SAVINGS, TRANSITIONAL AND AMENDMENTS
Division 1--Savings and Transitional
93. Definitions
In this Part--
"new Board" means the Optometrists
5
Registration Board of Victoria established
under this Act;
"old Act" means the Optometrists Registration
Act 1958 as in force immediately before its
repeal;
10
"old Board" means the Optometrists Registration
Board of Victoria established under the old
Act.
94. Repeal
No.6329. The Optometrists Registration Act 1958 is
15
Reprinted to
repealed.
No. 31/1994
95. Board succeeds old Board
(1) On the commencement of this section--
(a) the old Board is abolished and its members
go out of office; and
20
(b) any rights, assets, liabilities and obligations
of the old Board, immediately before its
abolition, become rights, assets, liabilities
and obligations of the new Board; and
(c) the new Board is substituted for the old
25
Board as a party in any proceeding, contract,
agreement or arrangement commenced or
made by, against or in relation to the old
Board; and
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(d) the new Board may continue and complete
any other continuing matter or thing
commenced by, against or in relation to the
old Board.
(2) On and from the commencement of this section,
5
the assets that become assets of the new Board
under sub-section (1)--
(a) if they are moneys or amounts standing to
the credit of any fund or account of the old
Board, must be taken to form part of the
10
Optometrists Registration Board Fund; and
(b) if they are assets in which the funds of the
old Board have been invested, must be taken
to be investments of the Optometrists
Registration Board Fund.
15
(3) A reference in any Act (other than this Act) or in
any subordinate instrument within the meaning of
the Interpretation of Legislation Act 1984 to the
old Board must, on and after the commencement
of this section, be construed as a reference to the
20
new Board established under this Act unless the
context otherwise requires.
96. Proceedings before the old Board
(1) If an investigation or inquiry into the activities or
physical or mental health of a registered
25
optometrist under the old Act has commenced but
not been completed before the commencement of
Part 3 of this Act--
(a) that investigation or inquiry may be
completed on and after that date; and
30
(b) any appeal or other further proceedings
which might have been taken in relation that
investigation or inquiry under the old Act
might be taken on and after that date--
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by the old Board as if this Act had not been
enacted.
(2) The new Board must give effect to a decision
made on an inquiry, investigation or appeal
completed by the old Board as if it were a
5
decision under this Act.
97. Application of this Act to conduct occurring before
commencement of this Act
(1) In the case of activities of a person who is deemed
by section 98 to be a registered optometrist under
10
this Act which occurred before the
commencement of Part 3 and in respect of which
no proceedings have been commenced under the
old Act, this Act applies to the extent that there
was power to conduct an inquiry under the old
15
Act into those activities.
(2) Any determination or outcome of a hearing into
those activities must be one which would have
been available as a finding or decision in an
inquiry by the Board under the old Act.
20
(3) This section does not apply to activities which are
the subject of proceedings to which section 96
applies.
98. Existing registrations
(1) A person who was registered as an optometrist
25
under the old Act immediately before the
commencement of Part 2 of this Act is deemed to
have general registration under this Act.
(2) If a person is deemed to be registered under this
section and the registration of that person under
30
the old Act, immediately before the
commencement of this Act, was suspended, the
registration of that person under this Act is
deemed to be suspended for the remainder of the
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s. 99
Act No.
period for which that person's registration would
have been suspended under the old Act.
(3) If a person is deemed to be registered under this
section and the registration of that person under
the old Act, immediately before the
5
commencement of this Act, was subject to
conditions, limitations or restrictions, the
registration of that person under this Act is
deemed to be subject to the same conditions,
limitations or restrictions as those to which the
10
registration under the old Act was subject.
(4) The registration of a person who is deemed to be
registered under this section expires (unless
sooner cancelled) at the end of the period for
which the person was registered under the old
15
Act.
(5) A reference in any Act (other than this Act) or a
subordinate instrument within the meaning of the
Interpretation of Legislation Act 1984 to an
optometrist registered under the old Act who is
20
deemed by sub-section (1) to be registered under
this Act must, on and after the commencement of
this section, be construed as a reference to an
optometrist registered under this Act unless the
context otherwise requires.
25
99. Preparation of annual report
The new Board shall prepare the annual reports
that the old Board would have been required to
prepare under the Financial Management Act
1994 in respect of any part of the financial year
30
ending on 30 June 1997 during which the old
Board operated.
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s. 100 Act No.
Division 2--Consequential Amendments
100. Amendment of Drugs, Poisons and Controlled
Substances Act 1981
No. 9719. (1) In section 4(1) of the Drugs, Poisons and
Controlled Substances Act 1981 after the
5
definition of "registered medical practitioner"
insert--
' "registered optometrist" means a registered
optometrist within the meaning of the
Optometrists Registration Act 1996;'
10
(2) In section 13(1) of the Drugs, Poisons and
Controlled Substances Act 1981, after paragraph
(b) insert--
"; and
(c) any registered optometrist whose registration
15
is endorsed under section 11 of the
Optometrists Registration Act 1996 is
hereby authorised to obtain and have in his
or her possession and to use, sell or supply
any Schedule 4 poison specified in the
20
endorsement in the lawful practice of his or
her profession as a registered optometrist.".
(3) In section 13(2) of the Drugs, Poisons and
Controlled Substances Act 1981, after "(1)"
insert "(a) or (b)".
25
(4) After section 13(2) of the Drugs, Poisons and
Controlled Substances Act 1981 insert--
"(2A) Sub-section (1)(c) shall not be construed as
authorising a registered optometrist referred
to in that paragraph to sell or supply any
30
Schedule 4 poison by retail in an open shop
unless the optometrist is licensed under this
Act to do so.
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s. 101
Act No.
(2B) Sub-section (1)(c) applies, despite anything
to the contrary in the Table to section 12A or
the heading to Schedule number 4 contained
in the Poisons List.".
(5) In section 36B(1)(b) of the Drugs, Poisons and
5
Controlled Substances Act 1981 after "medical
practitioner," insert "registered optometrist,".
(6) In section 129 of the Drugs, Poisons and
Controlled Substances Act 1981--
(a) in subsection (1)(a) after "practitioners"
10
insert ", registered optometrists,";
(b) in sub-section (1)(aa) after "practitioners,"
insert "registered optometrists,";
(c) in sub-section (2) after "practitioner," insert
"registered optometrist,";
15
(7) In section 132(q) of the Drugs, Poisons and
Controlled Substances Act 1981 after
"practitioner," insert "registered optometrist,"
101. Amendment of Health Services (Conciliation and
Review) Act 1987
20
No.25/1987.
In the Schedule to the Health Services
(Conciliation and Review) Act 1987, for
"Optometrists Registration Board" substitute
"Optometrists Registration Board of Victoria".
25
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Notes Act No.
NOTES
By Authority. Government Printer for the State of Victoria.
65
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